Opposition — O'Donnell v. United States

No. 76-234

In the Supreme Court of the United States

OCTOBER TERM, 1976

Boyp JAMES O’DONNELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RoBertT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

MERVYN HAMBURG,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Ter eo er es ee

FILED

NOV 3 WG

MICHAEL RODAK, JR., CLERK

|

INDEX

Page

Cates CORI onceccccecccnseresscsvecesccsssnscsssensesnonsosvesanseosecene l

I ccennisasendssnnmmmmannienmnentennmnnunennnantiees l

GBTRORS BOUNITIED occcccccececsscsescesccsnessssussncnseneennensonsesees l

RIO onnintienteenmmminonmmnnemeN 2

PBITITTIIII 6.0cccccessceccscecescsssecevsesscesscovesssosscsoceseocosencossooooes 4

IID crincnsicrnsonmninnniintnintinceemsnniinmnenmnennee 10

CITATIONS

Cases:

Bachner v. United States, 517 F. 2d 589 ............... 7

Barker v. Wingo, 407 U.S. 514.0... ccececcceeeeeeeeeee eee 8

Blackledge v. Perry, 417 U.S. 21 ......cceccceeeeeeeee eens 7

Bryan v. United States, 492 F. 2d 775,

certiorari denied, 419 U.S. 1079 2.0.0... eee. 6

Davis v. United States, 470 F. 2d 1128 ................. 5

Davis v. United States, 411 U.S. 233.00... 9

Fleming v. United States, 378 F. 2d 502 ............... 9

Fowler v. United States, 391 F. 2d 276 ................. 7

Jimenez v. United States, 487 F. 2d 212,

certiorari denied, 416 U.S. 916 «00.0.0... eee 6-7

Karcher v. Wainwright, 476 F/ a 7

Limon-Gonzalez v. United States, 499 F. 2d

SUEY scciinnsenilgeiieieninteienibiniibininnntssieiihatineiiiiaiiddigtinphaiaimineeeeneene 5

McCarthy v. United States, 394 U.S. 459.000.0000... 5

Menna v. New York, 423 U.S. 61 ...........cescseeeeeeeee 7

Cases (continued):

Speed v. United States, 518 F. 2d 75, certiorari

denied sub nom. Camp v. United States,

Se Stns: WIE aihchiaiishaniliininichieitabidipnabasidibipeydacecnsitbosiniiis

Tollett v. Henderson, 411 U.S. 258 ........0.00.00....

United States v. Brown, 499 F. 2d 829,

certiorari denied, 419 U.S. 1047 .........0..000000...

United States v. Crook, 526 F. 2d 708 ..............

United States v. Doyle, 348 F. 2d 715,

certiorari denied, 382 U.S. 843 oo...

United States v. Lee, 500 F. 2d 586,

certiorari denied, 419°U.S. 1003 .....0..0.000000000..

United States v. Maggio, 514 F. 2d 80,

certiorari denied, 423 U.S. 1032 .....................

United States v. Mann, 451 F. 2d 346 ...............

United States v. Marion, 404 U.S. 307 ..............

United States v. Mendoza, 491 F. 2d 534 .........

United States v. Mileto, 434 F. 2d 251 ..............

United States v. Rothberg, 480 F. 2d 534,

certiorari denied, 414 U.S. 856 ......................

United States v. Yazbeck, 524 F. 2d 641 ...........

Constitution and statute:

United States Constitution:

Fifth Amendment ..................... seaiedileadiniinhiaeniidiais

I

18 U.S.C. 152

OP eee eee eee eee eee eee ee eee eee eee eee ee ee ee eee eee eee

Page

iil

Miscellaneous:

Fed. R. Crim. P.:

OY] | ae 1, 2, 4, 5, 6

Rule LI(C)(1) .......ceeeeeececeeeeeeeeeeeereenenenseesseeeneeenees 4

Rule 11 (C)(5) .......:ccccccccsccsseeeeceeeeeeeeesssesceetereneees 4

Rule 12D) ...........cccccccccccscvecccccorccsseeesssossssosccsssoes 9

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 76-234

BoyD JAMES O”DONNELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 539 F. 2d 1233.

JURISDICTION

The judgment of the court of appeals was entered

on July 20 1976. The petition for a writ of certiorari

was filed on August 17, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the inquiry conducted by the district

court before accepting petitioner’s plea of guilty satis-

fied the requirements of Rule I1, Fed. R. Crim. P.

2. Whether the court of appeals erred in concluding

that petitioner’s plea of guilty precluded review of the

(1)

2

denial of his motion to dismiss the indictment for pre-

indictment delay and lack of a speedy trial.

STATEMENT

An indictment filed on January 9, 1975, in the United

States District Court for the District of Arizona charged

petitioner with 31 counts of making a false oath in

relation to bankruptcy proceedings, in violation of 18

U.S.C. 152. On November 18, 1975, following an unsuc-

cessful motion to dismiss the indictment for denial of his

right to a speedy trial and for pre-indictment delay, peti-

tioner requested permission to withdraw his plea of not

guilty and to enter a guilty plea to one count of the

indictment (Count XI).

Before accepting the plea, the district court conducted

an inquiry as required by Rule 11, Fed. R. Crim. P.

At the outset petitioner expressed his awareness of the

maximum punishment upon conviction (Tr. 19-20). Govern-

ment counsel then disclosed to the court the terms of a

plea bargain, providing for dismissal of the remaining

counts at sentencing, dismissal of related charges filed

against petitioner’s wife, and no recommendation by the

government with regard to the sentence to be imposed

(Tr. 20). Petitioner told the court that he understood

and agreed with the terms of the bargain as related by

the Assistant United States Attorney (Tr. 20-21) and that

he and his counsel had discussed and investigated the

matter thoroughly, with full awareness of the facts of

the case (Tr. 21-22). Petitioner’s attorney stated that he

concurred in the decision to enter a plea of guilty

(Tr. 22).

Petitioner informed the court that he was 58 years old,

had a college education, had prior courtroom experience,

and understood the nature of the proceedings (Tr. 22-23).

The court advised petitioner that by pleading guilty

3

he would waive certain constitutional rights, including

trial by jury, the presumption of innocence, the require-

ment that the government prove his guilt beyond a reason-

able doubt, the right to summon and cross-examine wit-

nesses, and the privilege against self-incrimination. Peti-

tioner replied that he understood these consequences but

that he nonetheless desired to plead guilty because he was

guilty of the offense charged (Tr. 23-24).

The court then read Count XI, which in essence

charged that on March 13, 1970, petitioner had know-

ingly and fraudulently made a false oath as to material

matters in relation to his own bankruptcy proceeding,

by filing with the clerk of the district court a bank-

ruptcy petition containing a false representation that

petitioner was employed as a salesman for the United

International Corporation. The following colloquy ensued

between the court and petitioner (Tr. 25-26):

[Q.] Generally, are those facts true?

A. Yes, they are.

Did you file the particular petition involved here?

Yes, I did.

And did you state therein that you were employed

as a salesman for United International?

A. Yes, I did.

Q. And was that true or false?

QO?

A. That was false.

in light of these responses, the court agreed to accept

the plea of guilty. On December 8, 1975, petitioner was

sentenced to three years’ imprisonment and the re-

maining charges against him and his wife were dis-

missed. The court of appeals affirmed (Pet. App. A),

4

rejecting petitioner’s attack upon the adequacy of the

Rule Il proceedings and his attempt to relitigate his

speedy trial and pre-indictment delay claims.

ARGUMENT

1. Petitioner contends (Pet. 9-12) that the district

court’s inquiry failed to satisfy the requirements of Rule

11, Fed. R. Crim. P., because the court failed to set

forth the elements of the offense, to place petitioner under

oath during the proceedings, or to make an adequate

determination that a factual basis existed for the plea.

In addition, petitioner alleges that the court erred in

allowing government counsel to recite the maximum

penalty for the offense and to ask petitioner whether

he understood the extent of the penalty. The court of

appeals correctly rejected these claims, however, for the

record shows that petitioner entered his plea of guilty

voluntarily, with a full understanding of the charges

against him and of the consequences of his plea, and

that there was a factua! basis for the plea. In any

event, petitioner’s contentions concern the proper inter-

pretation of a version of Rule I1 that has since been

repealed and, accordingly, they do not warrant further

review. !

At the time of petitioner’s guilty plea, Rule 11 provided

that the court “shall not accept such plea * * * without

first addressing the defendant personally and determining

‘Effective December |, 1975, Rule |i has been amended to

require the court to address the defendant personally with regard

to the maximum possible penalty provided by law (Rule | 1(c)(1)).

In addition, Rule I1I(c)5) states that a defendant must be warned

that the answers he gives to the court's questions about the

offense, if under oath. may subject him to a prosecution for

perjury or false statement. As petitioner recognizes (Pet. 11),

these amendments were not in effect on the date of his plea.

5

that the plea is made voluntarily with understanding of

the nature of the charge and the consequences of the

plea. * * * The court shall not enter a judgment upon a

plea of guilty unless it is satisfied that there is a

factual basis for the plea.” The record reflects that there

was adequate compliance with those requirements in this

case. Petitioner, who was represented by counsel, was

questioned at length by the court, and his unequivocal

responses leave no doubt that his guilty plea was know-

ingly and voluntarily entered. Although, as petitioner con-

tends, the court’s thorough inquiry was preceded by gov-

ernment counsel’s statement of the maximum penalty for

the offense and by petitioner’s express admission that he

was aware of that penalty, nothing in Rule I! as it

read prior to the recent amendments prohibited such

preliminary questioning by the prosecutor or others.

See United States v. Yazbeck, 524 F. 2d 641, 643

(C.A. 1); Limon-Gonzalez v. United States, 499 F. 2d

936, 937, n. 2 (C.A. 5); Davis v. United States, 470

F. 2d 1128, 1130-1132 (C.A. 3); United States v. Miieto,

434 F. 2d 251, 252 (C.A. 2). Rule II is designed to

create a record to demonstrate the voluntariness of a

plea of guilty (McCarthy v. United States, 394 U.S. 459,

467), and therefore the essential concern is not that the

court ask all of the questions but that “the record leave no

doubt that the defendant heard and understood what was

said.” United States v. Yazbeck, supra, 524 F. 2d at 643.

In any event, the district court specifically asked peti-

tioner whether he “underst[ood! the penalties that the

Court could impose, as just explained to you by [the

6

Assistant United States Attorney],” and petitioner said

“Yes, I do” (Tr. 24).?

Furthermore, contrary to petitioner’s contentions (Pet.

10), there was no requirement under the old Rule II

that a defendant be questioned under oath.’ Finally,

petitioner’s responses clearly established that there was

a factual basis for his plea, since he admitted to each

of the allegations in the indictment, including the charge

that he “knowingly and fraudulently” made a false

material representation during the bankruptcy proceeding

concerning his employment. It is sufficient under Rule

11 if “the inquiry made * * * was factually precise enough

and sufficiently specific to develop that [petitioner’s]

conduct on the [occasion] involved was within the ambit

of that defined as criminal.” Jimenez v. United States,

>By contrast, in United States v. Crook, 526 F. 2d 708 (C.A.

5). the court questioned the defendant only as to his participa-

tion in the offense, while permitting government counsel to inquire

broadly of the defendant whether the plea of guilty was voluntary.

While we disagree with the result in Crook, which seems un-

necessarily technical, that case is therefore clearly distinguishable.

Similarly, in United States v. Yazbeck, supra, the court recognized

that the trial judge may rely on others to state the statutory

punishment or to conduct portions of the required examination,

but reversed the conviction because the record was not clear as

to whether the defendant had heard and understood government

counsel's statement of the maximum penalty.

‘Exercising its supervisory authority, one circuit has ordered

that a defendant wishing to enter a guilty plea be questioned

under oath, in order to preclude later attacks on the representa-

tions made during the Rule I! inquiry. Bryan v. United States,

492 F. 2d 775, 781 (C.A. 5), certiorari denied, 419 U.S. 1079.

That court has held, however. that the failure to place the defen-

dant under oath does not entitle him to vacate his plea of guilty

absent a showing of prejudice. United States v. Maggio, 514

F. 2d 80, 91-92 (C.A. 5). certiorari denied, 423 U.S. 1032.

7

487 F. 2d 212, 213(C.A. 5), certiorari denied, 416 U.S. 916.

See Bachner v. United States, 517 F. 2d 589, 593 (C.A. 7).

2. Petitioner contends (Pet. 6-9) that the court of

appeals erred in concluding that his guilty plea pre-

cluded review of the claim that he was prejudiced by

pre-indictment delay and by denial of a speedy trial.

But it has long been held that a plea of guilty waives

such defects. See Speed v. United States, 518 F. 2d

75 (C.A. 8), certiorari denied sub nom. Camp v. United

States, 423 U.S. 988; United States v. Lee, 500 F. 2d

586 (C.A. 8), certiorari denied, 419 U.S. 1003; Karcher

v. Wainwright, 476 F. 2d 179 (C.A. 5); United States

v. Mann, 451 F. 2d 346 (C.A. 2); Fowler v. United

States, 391 F. 2d 276 (C.A. 5); United States v. Doyle,

348 F. 2d 715 (C.A. 2), certiorari denied, 382 U.S. 843.

Menna v. New York, 423 U.S. 61, does not require a

different result. in Menna, the Court held that a plea

of guilty did not prevent appellate consideration of

defendant’s claim that his prosecution was barred by

double jeopardy, noiing (id. at 63, n. 2):

A guilty plea * * * simply renders irrelevant those

constitutional violations not logically inconsistent

with the valid establishment of factual guilt and which

do not stand in the way of conviction, if factual

guilt is validly established. Here, however, the claim

is that the State may not convict petitioner no matter

how validly his factual guilt is established. The guilty

plea, therefore, does not bar the claim.

Unlike the Double Jeopardy Clause, whose protections

are “distinctive,” Blackledge v. Perry, 417 U.S. 21, 3i,

the right to be indicted and tried expeditiously is

designed in large part to limit the possibility that a

defendant's defense will be impaired through loss of

memories or the death or disappearance of witnesses.

Barker v. Wingo, 407 U.S. 514, 532; United States

v. Marion, 404 U.S. 307, 324. By freely and voluntarily

pleading guilty, however, petitioner had admitted the

truth of the charges in the indictment, has ensured that

his factual guilt was properly established, and has

conceded that his conviction was not unfairly procured

by the passage of time. Thus, as the court of appeals

correctly held (Pet. App. 7-8), petitioner’s Fifth ar.d Sixth

Amendment claims are not logically inconsistent with the

valid establishment of guilt. Hence, they were waived

by his plea of guilty.4

Other reasons also suggest that petitioner’s arguments

have little to recommend them. As noted above, proof

of prejudice is an essential ingredient of a successful

claim of pre-indictment or pretrial delay, and such proof

is generally unavailable before the trial itself. See

Barker v. Wingo, supra, 407 U.S. at 530-532. Since

petitioner’s voluntary plea of guilty eliminated a trial,

‘Petitioner could have foregone a full-dress trial yet preserved

his pre-indictment delay and speedy trial claims for appeal either

by stipulating to the essential facts (see United States v. Mendoza,

491 F. 2d 534, 537-538 (C.A. 5)), or by attempting to enter a plea of

guilty with a reservation, a procedure that has been approved by

some courts of appeals when consented to by the government and the

trial judge. See United States v. Brown, 499 F. 2d 829, 831-832

(C.A. 7), certiorari denied, 419 U.S. 1047, United States v.

Rothberg, 480 F. 2d 534, 535 (C.A. 2), certiorari denied, 414

U.S. 856. Under the circumstances here, however, it would be

inequitable to allow petitioner to raise his substantive legal claims

on appeal after pleading guilty pursuant to a plea bargain that

led to the dismissal of 30 of the 31 counts against him, since

the government agreed to the plea in the belief that it would

terminate the proceedings against petitioner. Moreover, the fact

that petitioner did not seek to preserve his appeal rights at the

time of entry of his plea strongly suggests that his appeal is a

product of dissatisfaction with his sentence.

9

it thus prevented the compilation of an adequate eviden-

tiary record for an appellate court to consider in

reviewing his claims. Therefore, just as a defendant who

fails to present these Fifth and Sixth Amendment

arguments prior to trial may not raise them on appeal

(see Fed. R. Crim. P. 12(b); Fleming v. United States,

378 F. 2d 502, 504 (C.A. 1); cf. Davis v. United States,

411 U.S. 233), petitioner’s guilty plea effectively pre-

cluded further review of the denial of his pretrial mo-

tions and constituted a waiver of those claims. See

Tollett v. Henderson, 411 U.S. 258, 267.5

‘In any event, the record clearly shows that the district court

properly denied petitioner's motions to dismiss. This prosecu-

tion arose out of petitioner's bankruptcy proceedings, which were

still pending on appeal on the eve of trial. The Federal Bureau

of Investigation began its extensive investigation of this case in

1971, and during the next three years it submitted over 300

pages of reports to the United States Attorney, who also had to

examine more than 2,000 pages of transcripts and nearly 200

exhibits. See Tr. 4-5. An indictment was filed on May 30, 1974, and

a superseding indictment was filed on January 9, 1975. On January

30, 1975, a trial date in November 1975 was scheduled. However,

not until late October 1975, three weeks before trial, did petitioner

file a motion to dismiss the indictment on speedy trial grounds.

Furthermore, his claim of prejudice concerned the death or inca-

pacitation of witnesses who were not mentioned and had not

testified in the first round of bankruptcy proceedings and who

certainly were irrelevant to the count on which petitioner pleaded

guilty. Moreover, petitioner did not allege, much less prove, that

the delays were attributable to a decision by the government to

prejudice his defense. In these circumstances, the district court,

following a hearing, properly denied petitioner's speedy trial

and pre-indictment delay claims.

10

CONCLUSION

It is respectfully submitted that the petition for a

writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

MERVYN HAMBURG,

Attorneys.

NOVEMBER 1976.

DOJ-1976-11